Monday, 6 November 2017

The EU and the Spanish Constitutional Crisis

Cecilia Rizcallah, Research
Fellow at the Belgian National Fund for Scientific Research affiliated both to
Université Saint-Louis Bruxelles and Université libre de Bruxelles

Background

Spain is facing, since
more than a month now, a constitutional crisis because of pro-independence
claims in Catalonia. These claims resulted in the holding of an independence
referendum on 1 October 2017, organized by the Spanish autonomous community of
Catalonia’s authorities, led by its President Mr. Carles Puigdemont.
According to Barcelona, 90% of the participants voted in favor of Catalonia’s
independency on a turnout of 43%.

Several weeks
before the holding of the referendum, the Spanish Constitutional Court held
that such plebiscite was contrary to the Spanish Constitution, and it was
therefore declared void by the same Court. The Spanish central Government moreover
firmly condemned this act and suspended Catalonia’s autonomy, on the basis of Article
155 of the Spanish Constitution which allows the central Government to adopt
“the necessary measures to compel regional authorities to obey the law” and,
thereby, to intervene in the running of Catalonia.

EU’s Incompetency in Member States’ Internal
Constitutional Affairs

During these
events, a contributor to the New York
Timeswondered “Where is the European Union?”. The Guardianstated
“As Catalonia crisis escalates, EU is nowhere to be seen”. EU authorities’
restraint can yet easily be explained, at least, from a legal point of view.
Indeed, the European Union has in principle neither the competence, nor the
legitimacy, to intervene in its Member States’ internal constitutional affairs.
Article 4.2 TEU incidentally underlines that the EU shall respect Member
States’ “national identities, inherent in their fundamental structures,
political and constitutional, inclusive of regional and local self-government”
and that it “shall respect their essential State functions, including ensuring
the territorial integrity of the State, maintaining law and order and
safeguarding national security. In particular, national security remains the
sole responsibility of each Member State”. The President of the Commission,
J.-C. Junker stated
that it was “an internal matter for Spain that has to be dealt with in line
with the constitutional order of Spain” but however noted that in case of
separation of Catalonia from Spain, the region would consequently “find itself
outside of the European Union”.

Puigdemont’s Departure
for Brussels

Theoretically, the EU
has thus no legal standing to intervene in the Spanish constitutional crisis. Recent
events have, however, brought the EU incidentally on stage.

Mr. Puigdemont, the
deposed leader of Catalan authorities, left Barcelona for Brussels several days
ago, where he declared he was not intended to seek asylum and that he would
return in Spain if judicial authorities so request, provided he was guaranteed conditions
of a fair judicial process. In the meanwhile, the State prosecutor decided to
start proceedings against Mr. Puigdemont and other officials of the ousted
Catalan government for rebellion, sedition and embezzlement and demanded to the
judge in charge of the processing charges to issue a European arrest warrant (hereafter
EAW) for Mr. Puigdemont and four other members of his former cabinet, after
they failed to appear at the High Court hearing last Thursday. The EAW was issued by the Spanish judge last
week. EU law has thus been relied upon by Spanish authorities to respond to its
internal crisis, because of the departure of several Catalan officials to
Brussels, which constituted, at the outset at least, nothing more than a lawful
exercise of their free movement rights within the Schengen area.

Mr. Puidgemont and
the other people subject to a EAW presented themselves to Belgian authorities, which
decided to release them upon several conditions including the prohibition to
leave the Belgian territory. A Belgian Criminal Chamber has as of now two weeks
to decide if they should be surrendered to Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to
Puidgemont’s Belgian
lawyer, the former Catalan leader will agree to return in Spain provided that
he will be guaranteed respect of his fundamental rights, including the right to
an impartial and independent trial. He moreover underlined that Puidgemont will
submit itself to Belgian judicial authorities which will have to assess whether
or not these conditions are met.

The system of the
EAW, however, entails a quasi-automaticity of the execution by requested
authorities of any Member State. Indeed, because it relies upon the principle
of mutual trust between Member States, requested authorities may not, save in
exceptional circumstances, control the respect by the requesting State of
fundamental values of the EU, including democracy and human rights. The Council
Framework
Decision 2002/584 of 13 June 2002, which establishes the EAW includes a
limitative list of mandatory and optional grounds for refusal which does not
include a general ground for refusal based on human rights protection (Articles
3 and 4). Indeed, only specific violations or risk of violations of fundamental
freedoms justify the refusal to surrender, according to the Framework Decision.
As far as the right to a fair trial is concerned, the Framework Decision does
not include possibilities to rebut the presumption of the existence of fair
proceedings in other Member States except when the EAW results from an in abstentia decision and only under
certain conditions (Article 4a).

A strong
presumption of respect of EU values underlies EU criminal cooperation and the ECJ
has, as of now, accepted its rebuttal on grounds of human right not included in
the main text of the Framework Decision only where a serious and genuine risk
of inhuman and degrading treatment existed for the convicted person in case of
surrender (see the Aranyosi case,
discussed here).
In that respect, the lawyer of the other Catalan ministers who are already in
jail has lodged
a complaint for mistreatment of them, but more elements will be required to
refuse the execution on the EAW on this basis.

Indeed, according
to the Court of Justice, “the executing judicial authority must, initially,
rely on information that is objective, reliable, specific and properly updated
on the detention conditions prevailing in the issuing Member State and that
demonstrates that there are deficiencies, which may be systemic or generalised,
or which may affect certain groups of people, or which may affect certain
places of detention”. Moreover, the domestic judge must also “make a further
assessment, specific and precise, of whether there are substantial grounds to
believe that the individual concerned will be exposed to that risk because of
the conditions for his detention envisaged in the issuing Member State” before
refusing the execution of the EAW (Aranyosi,
paras 89 and 92).

Furthermore, the
possibility to refuse to surrender persons convicted for political offences –
which is traditionally seen as being part of the international system of
protection of refugees - has been removed from the Convention
on Extradition between Member States of the European Union concluded in 1996 – which
is the ancestor of the current EAW system - precisely because of Member States’
duty to trust their peers’ judicial system. Interestingly, the removal of this
ground for refusal had been required by Spain when it faced difficulties to
obtain the extradition of Basque independentists who were seeking for protection
in Belgium. The Spanish government pleaded that the ground for refusal for
political infractions constituted a hurdle to criminal cooperation within the
EU which was at odds with the trust that Member States should express to each
other (see E.
Bribosia and A. Weyembergh, “Extradition et asile: vers un espace
judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current
state of EU law, no option for refusal of execution of the EAW concerning Mr. Puidgemont
seems thus to exist. It is noteworthy, however, that the EAW system may, as a
whole, be suspended, when the procedure provided for by Article
7 TEU is initiated if there is a (clear risk of) violation of the values referred
to in Article
2 TEU on which the Union is founded, including human rights, democracy and
the rule of law. Although some people have called for the initiation of this
mechanism, the reliance on Article 7 is very unlikely to happen politically: it
needs at least a majority of four fifths at the Council just to issue a
warning, and the substantive conditions of EU values’ violations are very high.

Nonetheless, Belgium
has included in its transposing legislation (Federal Law of 19
December 2003 related to the EAW) an obligatory ground of refusal – whose
validity regarding EU law can seriously be put into question - if there are valid grounds for believing that
its execution would have the effect of infringing the funda­mental rights of
the person concerned, as enshrined by Article
6(2) of the TEU (Art. 4, 5°). Triggering this exception will however
result, in my view, in a violation of EU law by the Belgian judge since the ECJ
has several times ruled that the grounds for refusal included in the Framework Decision
were exhaustive and that a Member State could not rely upon its national human
rights protection to refuse the execution of a EAW which respects the
conditions laid down in the Framework Decision (Melloni). Another option for the Belgian judge will be
to make a reference to the ECJ for a preliminary ruling in order to ask
whether, in the case at hand, the presumption of conformity with EU fundamental
rights in Spain may be put aside because of the specific situation of Mr.
Puidgemont.

The Quasi-Exclusion of the Asylum Right for EU Citizens

Besides asking for
the refusal of his surrender to Spanish authorities, Mr. Puidgmont could - at least
theoretically – seek asylum in Belgium on the basis of the Refugee Convention of 1951,
which defines as refugees people with a well-founded fear of persecution for
(among other things) their political opinion (Article 1.A.2).

However, Spain also
requested – besides the removal of the ground for refusal to surrender a person
based on the political nature of the alleged crime in the European Extradition
Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals
of Member States of the European Union, annexed to the Treaty of Amsterdam
signed in 1997. This Protocol practically removes the right of EU citizens to
seek asylum in other countries of the Union.

Founding itself on
the purported trustful character of Member States’ political and judicial
systems and the (presumed) high level of protection of fundamental rights in
the EU, the Protocol states that all Member States “shall be regarded as
constituting safe countries of origin in respect of each other for all legal
and practical purposes in relation to asylum matters” (Art. 1). Any application
for asylum made by an EU citizen in another Member State shall therefore be
declared inadmissible, except if the Member State of which the applicant is a
national has decided to suspend temporarily the application of the European
Convention on Human Rights in time of emergency (Article 15 of the ECHR; note
that it’s not possible to suspend all provisions of the ECHR on this basis) or if
this Member State has been subject to a decision based on Art. 7.1. or 7.2. TEU
establishing the risk or the existence of a serious and persistent breach by
the Member State of EU values referred to in Art. 2 TEU.

A Member State may
also decide, unilaterally, to take an asylum demand into consideration at the
double condition that it immediately informs the Council and that that the
application shall be dealt with on the basis of the presumption that it is
manifestly unfounded. This last
derogation has been invoked by Belgium which has adopted a declaration stating
that it would proceed to an individual examination of each asylum demand of a
EU citizen lodged with it. To comply with EU law, it must however consider each
application manifestly unfounded rendering the burden of the proof very heavy
for the EU citizen asylum seeker. Belgian
alien’s law provides for an accelerated procedure for asylum when the
individual comes from an EU country (Article 57/6 2 of the Belgian
Aliens Act) but statistics
nevertheless show that about twenty asylum demands from EU citizens where
declared founded in 2013 and 2014 by Belgian authorities.

The EU Brought on Stage…

In both cases, the
refusal to execute the EAW or the granting of an asylum right to Mr. Puidgemont
would result from the consideration that the Spanish judiciary does not present
the basic and essential qualities of independence and impartiality to
adjudicate the case related to Catalan independence activists. This observation
would likely result in a major diplomatic dispute between the two countries
and, more widely, in the EU. Indeed, the consideration made by Belgium and/or
the ECJ that Spain would not respect fundamental values of the EU in treating the
case of Catalonia would jeopardize the essential principle of mutual trust between
Member States, which is relied upon in criminal, asylum but also in civil
judicial cooperation. The Spanish constitutional crisis could thereby
potentially call into question the whole system of cooperation in the European
Area of Freedom Security and Justice.

3 comments:

It is a very interesting blogpost. However I ask myself the question if in the hypothetical case Mr. Puigdemont would be granted asylum in Belgium, would this in your opinion be a ground to not execute the European Arrest Warrant issued by Spain? You already highlighted the fact that the Human rights clause in Belgium to not execute a European Arrest Warrant might be questioned with the validity of EU law.